Checks and Balances for the judiciary?

On May 24th, an 18-year-old man opened fire at an elementary school in Uvalde, Texas, USA, killing 19 students and two teachers. That is a primary school. Young children. 

This was not an isolated incident. In addition to supplying arms to the world, the US guns lobby also ensures that its citizens are able to use firearms freely, irrespective of the use to which they are put. Whether it is the Dick Cheney hunting accident, or the mass shooting, nothing has been able to convince US lawmakers to control the easy access to firearms and ammunition. 

But the Texas shooting was the straw that broke the camel's back. There was a national outcry and the citizens made it clear that status quo cannot continue. Something would have to change at the policy level. 

And it did. On June 23rd, the US Supreme Court ruled that teachers can henceforth carry guns. 

Then, on June 24th, the American Supreme Court overturned Row vs Wade. This basically means that in most states in the US,  a woman can no longer get an abortion. For Any Reason. 

Abortion is banned in Christianity, but the US is a secular state - legally. 

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India: 

April: Rapist and Murderer of a 4 year old is a sinner with a future. 

On 23rd April, 2022, the Supreme Court overturned (reversed) a death sentence given to a man who had raped and murdered a 4 year old. Their words in the judgement: 

Supreme Court Bench of Justices UU Lalit, S Ravindra Bhatt, and Bela Trivedi mention - every saint has a past and every sinner has a future. 

On 20th May, a Supreme Court bench headed by Chief Justice N.V. Ramana and Justice Hima Kohli and including Justice L Nageswara Rao, decided on the Disha encounter case. What was the Disha encounter case? 

May: The Disha Encounter Case 

On Nov 27th, 2019, a 23 year old vet was returning home. On the way, her bike gave her trouble and she called her sister to inform her. She asked the sister to reach her soon because she was scared. When the sister reached, there was no trace of the doctor. 

The doctor had been raped, murdered, and then her body had been burnt. 

Her burnt body was subsequently recovered on November 28 morning from an underpass on National Highway 44. 

4 people were arrested by the police the very next day. By burning the body, the accused had basically obliterated all physical evidence like DNA, injury marks, post mortem, etc. 

Rape and murder arrests in India are abysmal and conviction rates are even lower. 

There was significant public anger after this crime. 

On Dec 6th, the 4 accused were encountered by the police. 

They were hailed as heroes by everyone, including the politicians of India. 

However, on 20th May, 2022, these 10 policemen were found guilty and the High Court was directed to take further action. That day, Indian Twitter trended with "We are with the police." 

July: The Nupur Sharma case 

An ASI (Archeological Survey of India) survey was going on to figure out if the Gyanvapi mosque was an erstwhile Hindu temple. A shivling had been found in the mosque complex. The Muslim community had then reached the Supreme Court and indicated that the structure was not a Shivlinga, but a fountain (in a place used to wash one's hands before offering namaaz). 

On a May 27 TV debate on the issue, Nupur Sharma, the spokesperson of the BJP, said to the representatives of Muslims that their religion is represented by the prophet marrying a 9 year old. 

Immediately, there was public uproar. The next day, she was suspended. 

The issue of the Gyanvapi mosque was immediately forgotten completely. 

After this, Nupur Sharma started getting death threats for her utterances. No one said that what she said was incorrect. But they objected to her saying it. "How dare she speak so disrespectfully?" 

On June 28th, a tailor named Kanhaiyalal, from Udaipur, who had received death threats because his son wrote a social media post supporting Nupur Sharma, was beheaded in public.

Nupur Sharma approached the Supreme Court to curb the FIRs being filed against her over remarks on Prophet Mohammed. She also mentioned that she has received threats. To which, on July 2nd,  a vacation bench of Justices Surya Kant and JB Pardiwala said - "She faces a security threat or has become a threat to the security of the nation?" 

Further: 

“This lady is single-handedly responsible for what is happening in the country,” commented Justice Surya Kant, who was extremely critical during the 20-minute hearing.

And these incidents make one think: 

What is the system of checks and balances for the judiciary?

Like, where can Indians and Americans go and say, "Wait a minute.. this needs a review.. ?" 

These judgements make me ask a fundamental question - the system of checks and balances exists for every pillar of government, except one. 

Where is the check and balance for this branch of governance? Appointment of judges is done by the judiciary, the recommendation goes from the judiciary, the appeal against the decision of the lower court is to the higher court. And if such a system of checks and balances is not there, maybe its time to create it?

Impeachment of Judges in India 

While there is no procedural control over the judiciary, individual judges can be impeached. 
But the process is the same as the Amendment of the Constitution by a Special Majority of the Parliament, AND an enquiry committee before that parliament session can be convened. In short, it requires a quorum of 100 in the Lok Sabha and 50 in the Rajya Sabha. It must be ratified by 2/3rd of the members present and at least 50% of the total members of BOTH houses. 

Impeachment of Judges - Law Insider India

This means that, effectively, a political party must have 2/3rd majority in BOTH Houses of the Parliament to proceed with impeachment. 

Therefore, no. of judges that have been impeached in India: 0. 

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Can the Supreme Court really trivialise the death threats to a person days after another person was brutally beheaded in the country? 

Can the Supreme Court really decide that she was single-handedly responsible for the violence, when the weapons had been lifted by someone else? Which weapon did she lift? Whom did she threaten? Is it ok to threaten someone on the basis of what they said? Or, Does the Court believe that Freedom of Speech is selectively applied?  

Her lawyer said - She responded to provocation.

If there is a misuse of the debate, the first thing she should have done was to file an FIR against the anchor", the bench commented.

However, the same Bench does not think that the people committing violence and setting the country on fire should have filed FIRs.

They can burn the country and Nupur Sharma is 'single-handedly' responsible for that.


So, in one case, the instigator is blameless, and in the other, the alleged instigator is single handedly responsible.

(I use the term alleged in the loosest possible manner. No one is saying what Nupur said was incorrect. Only that it hurt their sentiments. Even the Bench says - 

"We saw the debate on how she was incited. But the way she said all this and later says she was a lawyer it is shameful. She should apologise to the whole country," 

Ahem.. this is how I see these utterances. And, I am reminded of the classic Hillary Clinton quote - would you ask a man that question?